This is my third response to liberal Democrats’ efforts to take aim at the motion of the Department of Justice to dismiss the prosecution of General Michael Flynn.

First, I took a hard look at the Lawfareblog trio of Ben Wittes, Quinta Jurecic, and Susan Hennessey.  What Happens at Lawfareblog When Ben Wittes’s Baby Cannon Explodes in His Face.

Following that up, I took on the Lawfareblog effort to rescue Wittes/Jurecic/Hennessey, written by former Obama intelligence community official Robert Litt.  Lawfareblog Doubles Down With an Actual Legal Author — but Gets Same Bad Results.

Today its the turn of former acting head of DOJ’s National Security Division under Pres. Obama, Mary McCord.  On Sunday McCord penned an op-ed in the New York Times in which she took to task the DOJ motion because Justice had the temerity to rely on a statement she gave to the Special Counsel’s Office (SCO) in the summer of 2017.

But before jumping into the McCord piece, let’s add a couple biographical notes to the story of Mary McCord.

She was a career prosecutor with DOJ, and spent several years in the U.S. Attorney’s Office for the District of Columbia, and National Security Division of Main Justice. When McCord left DOJ she was hired by House Intelligence Committee Chairman Adam Schiff.  She was “front and center” in the whistleblower fraud run by Schiff.  Michael Atkinson, the Intelligence Community Inspector General who referred the whistleblower matter to the House Intelligence Committee, was “Special Counsel” to McCord at the National Security Division.

Now let’s turn to the op-ed she wrote for the NYT, endeavoring to undermine the DOJ motion to dismiss the case against Gen. Flynn.

Recall that the basis for the DOJ’s motion to dismiss was the finding from an internal review of the work of the SCO by U.S. Attorney Jeffrey Jensen from St. Louis, that at the time of the January 24, 2017 interview of Gen. Flynn, the FBI no longer had a legitimate counterintelligence investigation of him, and the FBI never opened a criminal investigation of him connected to his telephone calls with the Russian Ambassador.  Based on that factual determination, DOJ determined that there was no evidence that Gen. Flynn’s answers to the Agents questions — whether true or false — were “material” in a strictly legal sense, and “materiality” of a false representation is an element of the crime set forth in 18 U.S.C. § 1001.  Without materiality, there is no crime.

McCord comes forward to challenge DOJ’s determination.  First, she registers her objection to the use by DOJ of a statement she gave in mid-2017 to SCO investigators. She claims:

“[T]he report of my interview is no support for Mr. Barr’s dismissal of the Flynn case. It does not suggest that the F.B.I. had no counterintelligence reason for investigating Mr. Flynn.”

She is correct.  The DOJ motion states that FBI  — not her — said in writing on January 4, 2017, that it had no counterintelligence reason for continuing its investigation of Gen. Flynn.  So her point that she never said that is accurate — but irrelevant.

Going on …

“[My interview] does not suggest that the F.B.I.’s interview of Mr. Flynn — which led to the false-statements charge — was unlawful or unjustified.”

She is correct once again.  But DOJ did not claim anywhere in its motion that the interview of Gen. Flynn was “unlawful” or “unjustified.”  It stated that it was not conducted in connection with a properly predicated investigation, therefore his answers – even if interesting – were not legally “material” under the law.

More from McCord:

“[My interview] does not support that Mr. Flynn’s statements were not material.”

Correct.  But DOJ never said its determination on materiality were connected to anything in her statement.  Once again she responds to an argument that DOJ did not make in its motion.

But how does she reach her conclusion as to whether Gen. Flynn’s answers were material?  She doesn’t tell us, so we’ll just have to take her at her word I guess.  She’d probably tell us she never met the whistleblower either.

“And it does not support the Justice Department’s assertion that the continued prosecution of the case against Mr. Flynn, who pleaded guilty to knowingly making material false statements to the FBI, ‘would not serve the interests of justice.’”

This is her second effort to claim the “materiality” argument for her side — but it is also the second time she has done so without explaining how his answers were material, or how the position of DOJ on the issue is wrong.

Back to her op-ed:

“Notably, Mr. Barr’s motion to dismiss does not argue that the F.B.I. violated the Constitution or statutory law when agents interviewed Mr. Flynn about his calls with Mr. Kislyak.  It doesn’t claim that they violated his Fifth Amendment rights by coercively questioning him when he wasn’t free to leave. Nor does the motion claim that the interview was the fruit of a search or seizure that violated the Fourth Amendment.”

Correct again.  The motion does not mention any of these issues.  So why does she bring them up?  Is it that she doesn’t have much to offer about actual meaningful issues – like “materiality”?

Back to her op-ed:

The department concocts its materiality theory by arguing that the F.B.I. should not have been investigating Mr. Flynn at the time they interviewed him.

Incorrect.  DOJ’s position is clearly articulated — FBI internal documents state that the FBI should not have been investigating Gen. Flynn at the time of his interview.

“No further investigative efforts are warranted.”  Those words were written by the FBI’s Crossfire Hurricane team.  In a courtroom that would be called an “Admission”.

McCord:

“And the department notes that the F.B.I. had intended to close the investigation of Mr. Flynn in early January 2017 until it learned of the conversations between Mr. Flynn and Mr. Kislyak around the same time.”

Finally!!!!  She did need to resort to obfuscation and a mischaracterize of the FBI’s action, but at least she has landed in the right place in the 8^th paragraph of her piece.

The problem, however, is that the FBI was not at the point of only “intending” to close the counterintelligence investigation of Gen. Flynn — the FBI did close the counterintelligence investigation of Gen. Flynn.  The fact that the closing document was awaiting a supervisor’s approval — it was the supervisor who gave the directive to close the case — does not change the factual status of the investigation on January 4, 2017.

Who was running that investigation?  The Crossfire Hurricane team was running it.  What did the Crossfire Hurricane team write about the investigation? They wrote as follows:

Following the compilation of the above information , the [CROSSFIRE HURRICANE] team determined that CROSSFIRE RAZOR was no longer a viable candidate as part of the larger CROSSFIRE HURRICANE umbrella case.

Again, that’s not AG Barr, that’s not US Attorney Jensen, that’s not US Attorney Durham – that’s the “Crossfire Hurricane Team” after it spent 5 months investigating General Flynn as part of that investigation.

Back to McCord:

“Discounting the broader investigation and the possibility of Russian direction or control over Mr. Flynn, the department’s motion myopically homes in on the calls alone…”

Again, DOJ did not “discount the broader investigation” – the FBI’s Crossfire Hurricane team determined Gen. Flynn was “no longer a viable candidate as part of” the broader investigation.  They were done investigating Gen. Flynn.  The only thing new were the calls.  So how is focusing “myopically” on the only new fact inappropriate?  It’s not.  If the new fact did not change the decision that had already been made, then the calls did not justify the interview.

Back to the op-ed:

ecause [DOJ] views those calls as “entirely appropriate,” it concludes the investigation should not have been extended and the interview should not have taken place.

Almost, but not quite.  DOJ’s position is that making the calls was entirely appropriate for the incoming National Security Advisor, who was leading the Trump Transition team on national security matters.  The calls were less than 30 days prior to the Trump Administration taking over the foreign policy of the United States. Gen. Flynn spoke to dozens of foreign officials during the transition.  The fact that one of the officials he spoke with was the Russian Ambassador did not suggest or provide any basis for any further counterintelligence or criminal probe.

That leaves her with only the question of whether the content of the calls implicated any criminal or national security issues.  On this point, DOJ stated in the motion that no criminal investigation had been predicated and opened – and on reviewing the calls DOJ found there to be nothing suggestive of criminal activity.  In January 2017, DOJ, headed up by Sally Yates, dismissed the ludicrous suggestion that the calls might have violated the Logan Act.  But that’s really irrelevant — if the FBI wanted to question Flynn about the Logan Act, it needed to open a criminal investigation, but it never did.

Back to McCord:

“What the account of my interview describes is a difference of opinion about what to do with the information that Mr. Flynn apparently had lied to the incoming vice president, Mr. Pence, and others in the incoming administration about whether he had discussed the Obama administration’s sanctions against Russia in his calls with Mr. Kislyak. Those apparent lies prompted Mr. Pence and others to convey inaccurate statements about the nature of the conversations in public news conferences and interviews.

Why was that so important? Because the Russians would have known what Mr. Flynn and Mr. Kislyak discussed. They would have known that, despite Mr. Pence’s and others’ denials, Mr. Flynn had in fact asked Russia not to escalate its response to the sanctions. Mr. Pence’s denial of this on national television, and his attribution of the denial to Mr. Flynn, put Mr. Flynn in a potentially compromised situation that the Russians could use against him.”

The potential for blackmail of Mr. Flynn by the Russians is what the former Justice Department leadership, including me, thought needed to be conveyed to the incoming White House. After all, Mr. Flynn was set to become the national security adviser, and it was untenable that Russia — which the intelligence community had just assessed had sought to interfere in the U.S. presidential election — might have leverage over him.”

Finally, we get to the “Crown Jewel” of obfuscation and misdirection – the completely bogus “Flynn was possibly compromised by his lies” nonsensical claptrap.

How exactly can Gen. Flynn be compromised when both the U.S. and the Russians knew every word said by Gen. Flynn in the conversations?  How could Russia “compromise” Gen. Flynn by threatening to reveal information the US government already knew?

It goes without saying that the Russian Ambassador recorded his calls with Flynn. But how exactly would Gen. Flynn be compromised by the Russians threatening to reveal information already known to the US?

Let me change the facts and show you a circumstance about how he MIGHT have been compromised – under completely different facts.  This is what the left WANTS the public to think happened.

Suppose that rather than a phone call, Gen. Flynn met with the Russian Ambassador on a park bench near DuPont Circle in D.C.  And suppose that the Russians recorded everything that was said during the meeting, including something “provocative” or “unflattering” said by Gen. Flynn about VP Pence.  Then suppose that members of the Trump Administration said something completely the opposite of what Gen. Flynn said to the Russian Ambassador in private.

In that circumstance, the Russians would know something unflattering said to them by Gen. Flynn, but it would be something that the US intelligence community would not know.  The Russians could use a threat to reveal that unflattering information in order to try to leverage something out of Gen. Flynn.

BUT THAT DID NOT HAPPEN.  The US and Russians all knew the same information, and both sides knew the other side had the same information.

So all the twaddle in McCord’s op-ed about Flynn being exposed to “blackmail”, and every other publication or broadcast where such nonsensical trope is raised, just understand that is propaganda, talking points, and disinformation — there is no factual basis for the claim.

The fact that Mary McCord would actually try to peddle such nonsense in the NYT only proves something I learned three times in my career with the Justice Department – at the end of a second Presidential term, after all the “talented” people have departed, people like Mary McCord ascend to positions of authority, and they make your life miserable over that final weeks and months of the outgoing Administration.

McCord:

“Although several of us at Justice thought the likelihood of a criminal prosecution under the Logan Act was quite low …. we certainly agreed that there was a counterintelligence threat.”

That’s fine – as far as it goes.  But the Crossfire Hurricane team had already determined that Gen. Flynn was not an appropriate subject of a further counterintelligence investigation, so what “we” — McCord and others at DOJ — thought was irrelevant.

But how would Mary McCord be in a position to make such a judgment at all about the status of the investigation?  According to her statement given to the SCO she was not aware until January 3, 2017, that the FBI was even investigating Gen. Flynn.

McCord first learned of the investigation into Mike Flynn on a phone call with Deputy Director Andy McCabe on January 3, 2017. In that call, McCabe told McCord the FBI had been planning to close their investigation on Flynn before discovering his telephone calls with Russian Ambassador Sergey Kislyak,

So McCord is in no position to opine on what impact the phone calls had on the nature and quantity of the information the FBI had developed about Gen. Flynn in the counter-intelligence investigation it had conducted over five months.

If the phone calls had changed the status of the investigation from the what was described in the January 4, 2017 Draft EC, then the only thing the FBI had to do was document what it was about the calls that changed it, reopen the investigation with an “Opening EC”, and off they could go.  But the FBI did not do that — it did nothing instead.  It left the situation exactly as it was before the phone calls.  The final determination regarding Gen. Flynn was that he was “no longer a viable candidate as part of the larger CROSSFIRE HURRICANE umbrella case.”

McCord:

“But that “vacillation” has no bearing on whether the F.B.I. was justified in engaging in a voluntary interview with Mr. Flynn. It has no bearing on whether Mr. Flynn’s lies to the F.B.I. were material to its investigation into any links or coordination between Mr. Trump’s presidential campaign and Russia’s efforts to interfere in the 2016 election.”

That’s three times she has claimed the interview answers were “material”, but also three times she has failed to explain why and how that was the case.  Three strikes and she’s OUT!!!

The DOJ motion goes into great detail as to why they were not material.  Is it too much to ask that the folks clutching their pearls over the dismissal to offer up an explanation for why DOJ’s view is wrong??

“And perhaps more significant, it has no bearing on whether Mr. Flynn’s lies to the F.B.I. were material to the clear counterintelligence threat posed by the susceptible position Mr. Flynn put himself in when he told Mr. Pence and others in the new administration that he had not discussed the sanctions with Mr. Kislyak. The materiality is obvious.”

Wha….??  She just took a called 4th strike!!  “The materiality is obvious” … words of an attorney unable to articulate a necessary fact in responding to a judge’s question.  Seen it a million times.  It seems to come out so easy her fourth time through the issue.

But this is the NYT — you can’t end an op-ed on something so self-degrading as that.  So she had to throw in a straw man for her big finish:

 “In short, the report of my interview does not anywhere suggest that the F.B.I.’s interview of Mr. Flynn was unconstitutional, unlawful or not “tethered” to any legitimate counterintelligence purpose.”

“Purpose”??  Intentions were good, so no harm/no foul?  We had a pure heart so overlook our legal defects?

The key shortcoming on the issue of materiality has nothing to do with the “purpose” of the interview.  As the DOJ motion clearly stated:

“…the interview of Mr.Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation….”

Come on Mary — it’s right there in the name.   They don’t call it the “Federal Bureau of Matters” …  oops, wrong joke.

They don’t call it the “Federal Bureau of Purposes”.

I want to give a “hat tip” to a person who inhabits the comments at Patterico.com under the moniker “Sammy Finkleman”.  That may or may not be his true name, but he comments there frequently on legal matters, and often provides a significantly different view on the issues discussed.

Two days ago he posted a comment (No. 32) in which he included an excerpt from the transcript of the first sentencing hearing in the Flynn case before Judge Emmet Sullivan, which took place on Dec. 18, 2018.  Sammy Finkleman’s comment set off alarm bells in my head based on my experiences in having taken maybe 1000 guilty pleas in my time as a federal prosecutor.

The Dec. 18 hearing was where Judge Sullivan made the infamous “suggestion” — via asking the prosecutor if the issue had been examined — that maybe Gen. Flynn might have committed treason.  Later Judge Sullivan backtracked and offered a non-apology apology for his comments, and attempted to defend his motives for asking that loaded question.  Yet even later in the hearing Judge Sullivan conceded that he didn’t even know what the elements of an offense charging treason might be.  He made comments that clearly suggested he had a “jaundiced eye” with regard to the plea agreement and sentencing recommendation regarding Gen. Flynn because he disagreed with the disposition of the criminal case brought against Gen. Petreaus where he escaped with a misdemeanor conviction for unauthorized distribution of classified information.   But hey, what’s the big deal over a bit of spiff-balling from the bench about “treason” even if you do happen to defame a retired 3 Star General with 33 years of uniformed service to his country?

So, I’m not of a mind to treat Judge Sullivan with any “deferential respect.”

Judge Sullivan screwed up the factual basis of the guilty plea entered by Gen. Flynn, and the procedure he employed was unsound and violated Rule 11 of the Federal Rules of Criminal Procedure.  I think DOJ knows this to be the case, but given Judge Sullivan’s unpredictability they have opted to not “call him out” on it at this point.  Instead, I suspect there is a hope that he may recognize his error — it’s right there in the transcript — and will instead grant the DOJ motion which solves his problem without him having to confront — or be confronted on — his own astonishing error.

Below are passages from the hearing transcript.  I note the page number for each passage that instructs my conclusion.

P. 5
THE COURT: And there are some questions that I’m going to ask Mr. Flynn, and because this is an extension, in my opinion, of the plea colloquy, I’m going to ask the courtroom deputy at that time to administer the oath, because normally when we have plea colloquies, we always require a defendant to be under oath, and that’s what I’m going to do this morning, unless there are objections.

In this passage, Judge Sullivan admits that he believes a further “colloquy” is necessary with regard to Gen. Flynn’s decision to enter a guilty plea.  That means that as of this point in the transcript, he still has not found that all the necessary subjects have been addressed to his satisfaction, and he’s not yet prepared to accept Gen. Flynn’s guilty plea.

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Federal Rule of Criminal Procedure Rule 11(b)(3) states:  Determining the Factual Basis for a Plea. Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.  That means the Court must determine there are facts which satisfy each element of the charged offense before the Court can “enter judgment” against a defendant based on a guilty plea.

Judge Sullivan goes down that road here:

P. 7
THE COURT: As such, the Court concludes that it must now first ask Mr. Flynn certain questions to ensure that he entered his guilty plea knowingly, voluntarily, intelligently, and with fulsome and satisfactory advice of counsel. I cannot recall any incident in which the Court has ever accepted a plea of guilty from someone who maintained that he was not guilty, and I don’t intend to start today.

After addressing several matters raised by Gen. Flynn’s original attorneys in their Sentencing Statement — expressing some concern that the arguments made by the attorneys potentially impact the question of whether or not Gen. Flynn was really “accepting responsibility” for his conduct — in a very manner by which Judge Sullivan expressed a clear understanding that the press was going cover extensively what he said — Judge Sullivan walked back from his reservations on the “acceptance” issue (seeemingly to relief of prosecutor Van Grack), and stated as follows:

P.16

THE COURT: All right. I am satisfied that Mr. Flynn entered his guilty plea while competent and capable. He understood at that time the nature of the charges against him and the consequences of pleading guilty. Having carefully read all the materials provided to the Court in this case, including those materials reviewed under seal and in-camera, I conclude that there was and remains to be a factual basis for Mr. Flynn’s plea of guilty.

The problem is that while he said that, he never actually did that — which he happened to admit later in the hearing.

Remember, “materiality” is a a factual element of the offense of making a false statement to a federal agent.   It is subject to proof at trial — meaning the prosecution must offer witness testimony or documents to prove  “materiality”, and a jury would have to conclude that the evidence established “materiality” beyond a reasonable doubt”, i.e., that the false statement had a natural tendency to influence or to be capable of influencing the decision of the decision-maker to which it was addressed.

Under Rule 11, before Judge Sullivan could “enter judgment” on Gen. Flynn, he needed to determine that there was a factual basis  — as to EACH element of the charged offense.

Here’s the part where he screwed up.

He didn’t do that — which he confirmed with his own comments, not once, but twice.

P. 19
Mr. Flynn admitted that his false statements or omissions impeded and had a material impact on the investigation, and when I ask questions of the government, I need to know answers about how he impeded the investigation and what the material impact on the investigation was.

Judge Sullivan states in open court and on the record he still does not know how the false statements were material.  Without knowing that, he can’t determine if there actually is a factual basis for Gen. Flynn’s guilty plea because Judge Sullivan MUST KNOW that factual basis BEFORE he can adjudge Gen. Flynn to be guilty of the offense to which he is pleading guilty.

But Judge Sullivan didn’t just say he didn’t know if the statements were material one time — he came back to it at the end of the hearing and confirmed a second time that he didn’t know if Gen. Flynn’s statements were material.

P. 50
THE COURT: Let me just throw this out. Let me just share this with you. What I could do, and maybe it’s not appropriate to do it now, and maybe it’s not appropriate to do it in March. At some point — it probably won’t surprise you that I had many, many, many more questions, and at some point what I may do is share those questions with counsel so you can give some thought, maybe do some additional research to be prepared for an eventual sentencing. I’m not sure if I want to do that. I was not going to spend another hour and share those questions with you in open court today, had you decided to postpone sentencing, but I may do that. I’m not sure. These are questions that you would be prepared to answer anyway, such as, you know, how the government’s investigation was impeded? What was the material impact of the criminality? Things like that.

So, when discussing what might take place at the next hearing, Judge Sullivan reaffirms that he still needs to hear from both sides why Gen. Flynn’s statements were “material.”

Judge Sullivan entered judgment on a guilty plea without first finding that a factual basis existed.  That violated the requirements of Rule 11, and makes the guilty plea unsound.

The DOJ motion says the issue of “materiality” cannot be factually established based on the investigative records in the case.

It is also clear that Judge Sullivan never made a finding on materiality that needs to be reversed.

The guilty plea was invalid as a matter of law independent of the DOJ motion.